The Delhi HC, while hearing the defamation suit filed by Congress MP Shashi Tharoor against Arnab Goswami and Republic TV, recently observed that Goswami and his TV channel must respect Tharoor’s ‘right to silence’ pending investigation in the mysterious death of Sunanda Pushkar. The defamation suit was filed by Tharoor on the grounds that Goswami and Republic TV, by implicating Tharoor in Pushkar’s death, risked prejudicing the investigation and any subsequent trial. One of the concerns which Tharoor’s defamation suit raises is the balance between trial by media and free speech.

Trial by Media

Trial by media refers to sensational reporting done by news media aimed at determining the blameworthiness of suspects in high-profile criminal cases. In other words, the media investigates (‘tries’) high-profile matters by reporting them in a ‘whodunit’ manner. ‘Trial by media’ risks adversely prejudicing the accused/suspects in criminal cases during police investigations and court trials. Public opinion (as shaped by the media) can influence the police and judges in criminal cases — it can even pressurise the police to formally charge certain individuals in criminal cases based on media reports and judges to decide a case one way or the other. Trial by media also threatens the cardinal principle in criminal law that an accused is to be presumed innocent until proved guilty under the law.

Shashi Tharoor (C) after performing the last rites for his wife Sunanda Puskhar in New Delhi in January 2014. Image via Reuters

The two competing concerns involved in trial by media are the accused’s ‘right to a free and fair trial’ and ‘freedom of speech’ of the media.

Right to free and fair trial

The right to fair trial is not expressly stated as a right under the Indian Constitution. However, it is understood that the right to fair trial forms part of Article 21 of the Constitution which states, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. In Maneka Gandhi vs Union of India, the Supreme Court held that ‘procedure’ under Article 21 must not be arbitrary, unfair or unreasonable. While the ‘procedure’ under consideration in Maneka Gandhi related to an administrative procedure, one can extend the reasoning in Maneka Gandhi to cover police investigations and judicial procedures such as court trials as well. A case under Article 21 is generally brought against the State because fundamental rights are enforceable against the State and not private entities such as media houses. However, one may argue that the State would not be able to discharge its functions in the right manner when it is under public pressure (due to media influence) and therefore, if the government or courts allow the media an unfettered right to report, this would violate the right to free trial of an accused.

Freedom of speech of the media

Freedom of speech and expression is a fundamental right under Article 19(1) (a) of the Indian Constitution and is guaranteed to all citizens. Freedom of the press/media is not expressly stated in the Indian Constitution and can be inferred from Article 19 (1) (a). Under Article 19 (2), reasonable restrictions can be placed on the exercise of the right under Article 19 (1) (a) on certain specific grounds including contempt of court and defamation.

Freedom of media is expressly recognised in the right to freedom of speech and expression (Article 19) under the Universal Declaration of Human Rights (an international declaration adopted by the United Nations General Assembly and signed by India).

Media laws and attempts to regulate freedom of press in criminal cases

At present, there are no laws in India relating to trial by media, however, restrictions can be placed on the media in certain cases. Under section 2 (c) of the Contempt of Courts Act, 1971 ‘criminal contempt’ includes publication (words spoken or written or visual representation) which either interferes with or obstructs, or tends to interfere with or obstruct the administration of justice. Under section 2 (c), ‘criminal contempt’ also covers publication which prejudices or interferes with the due course of any judicial proceeding. Under the Contempt of Courts Act, Indian courts have the power to punish the press for ‘criminal contempt’ where it publishes content which could interfere with (or obstruct) the administration of justice or prejudice judicial proceedings such as criminal trials. Interestingly, section 3 states that a publication which is ‘criminal contempt’ under section 2 (c) would not be treated as contempt of court where no civil or criminal proceeding is pending in the matter in connection with which the publication is made. In other words, if the media publishes a sensational report on a matter in which the police has not formally filed a charge-sheet, such publication will not amount to contempt of court. This means that any misreporting on Sunanda Pushkar’s death by Goswami and Republic will not amount to contempt of court, unless the publication is made ‘after’ the challan/charge-sheet is filed or summons/warrants are issued.

Law Commission of India’s 200th Report on Trial by Media:

In August 2006, the Law Commission of India published its 200th Report titled, ‘Trial by Media: Free Speech and Fair Trial under Criminal Procedure Code, 1973’. In its report, the Law Commission recognised the need to regulate prejudicial coverage of crime because of its adverse impact on judges and the administration of justice. The Law Commission suggested amendments to the Contempt of Courts Act to prohibit trial by media including a provision that prejudicial publication, made after the arrest of a person in connection with a crime but before a formal charge-sheet is filed, should also be punished as contempt of court. This was also the position taken by the Supreme Court in 1969 in AK Gopalan vs Nordeen (1969 (2) SCC 734).

The Law Commission’s recommendations were not adopted in the Contempt of Courts (Amendment) Act, 2006.

Indian courts on freedom of speech and trial by media

In Saibal Kumar Gupta vs BK Sen (1961 AIR 633), the Supreme Court recognised that media trials interfere with the administration of justice and held, “No doubt it would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of that investigation. This is because trial by newspapers, when a trial by one of the regular tribunals of the country is going on, must be prevented. The basis for this view is that such action on the part of a newspaper tends to interfere with the course of justice whether the investigation tends to prejudice the accused or the prosecution.”

In Sahara Real Estate vs SEBI, the Supreme Court approved a temporary ban on media coverage to prevent infringement of the right to fair trial. The SC also provided guidance on when the court should grant such bans, and permitted applicants to “... seek an order of postponement of the offending publication/broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights, bearing in mind the above mentioned principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial”.

Recommendations to regulate and restrict trial by media

The Indian government can consider enacting laws or guidelines to restrict prejudicial reporting by media in criminal cases by adopting the Law Commission recommendations. Firstly, criminal contempt should cover prejudicial reporting made after the arrest of a person and not necessarily after filing of formal charges in a criminal case. Secondly, courts should be empowered to pass postponement orders along the lines of the section 4 (2) of the UK Contempt of Court Act 1981. A postponement order is an order to postpone the reporting of court proceedings to avoid a “substantial risk of prejudice to the administration of justice in those proceedings”. Thirdly, the legislation should specify which publications amount to criminal contempt, e.g., publications referring to character, confessions and previous convictions.

One might object to the regulation of trial by media on grounds that the right to free speech is on par with an individual’s right to fair trial. However, media trials are harmful to the larger public interest because prejudicial reporting obstructs justice and the society’s right to determine the truth.

The author is a research fellow at Centre for WTO Studies, Indian Institute of Foreign Trade. She is also a volunteer at Strategic Advocacy for Human Rights. Views expressed are personal.